Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: July 27, 2022

CASE NO(S).: OLT-22-003732 (Formerly PL100691)

PROCEEDING COMMENCED UNDER subsection 17(40) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Request to amend the Official Plan - Failure to adopt the requested amendment Purpose: To permit apartment buildings up to six storeys with 600 residential units Property Address: 801, 820, 828, 855, 865 and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: OPA-07-014 OLT Case No.: OLT-22-003732 Legacy Case No.: PL100691 OLT Lead Case No.: OLT-22-003732 Legacy Lead Case No.: PL100691 OLT Case Name: Valery (Chedoke Browlands) Developments Inc. v. Hamilton (City)

PROCEEDING COMMENCED UNDER subsection 34(11) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Application to amend Zoning By-law - Refusal or neglect to make a decision Purpose: To permit apartment buildings up to six storeys with 600 residential units Property Address/Description: 801, 820, 828, 855, 865 and 870 Scenic Drive Municipality: City of Hamilton Municipal File No.: ZAC-07-053 OLT Case No.: OLT-22-003737 Legacy Case No.: PL100692 OLT Lead Case No.: OLT-22-003732 Legacy Lead Case No.: PL100691

PROCEEDING COMMENCED UNDER subsection 51(34) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicant and Appellant: Valery (Chedoke Browlands) Developments Inc. Subject: Proposed Plan of Subdivision – Failure to make a decision Purpose: To permit apartment buildings up to six storeys with 600 residential units Property Address/Description: 801, 820, 828, 855, 865 and 870 Scenic Drive Municipality: City of Hamilton Municipality File No.: 25T-200712 OLT Case No.: OLT-22-003738 Legacy Case No.: PL100706 OLT Lead Case No.: OLT-21-001732 Legacy Lead Case No.: PL100691

Heard: June 13, 2022 by video hearing (“VH”)

APPEARANCES:

Parties	Counsel
Valery (Chedoke Browlands) Development Inc.	R. Cheeseman, S. Fleming
City of Hamilton (“City”)	P. MacDonald

MEMORANDUM OF ORAL DECISION DELIVERED BY WILLIAM R. MIDDLETON ON JUNE 13, 2022 AND ORDER OF THE TRIBUNAL

INTRODUCTION

1This unique matter was heard following the second Case Management Conference (“CMC”) in OLT File 21-001169 also held on June 13, 2022, which is the subject matter of this Member’s Decision issued on July 18, 2022. This entirely separate matter relates to a Decision of the OLT predecessor Tribunal, the Ontario Municipal Board (“OMB”) issued more than 10 years ago on June 22, 2012 (“Previous OMB Decision”).

2These two files were dealt with on the same day at the VH on June 13, 2022 was because they in turn involve the same property, being Part of Lot 57, Concession 2 in the City of Hamilton (“Subject Lands”), also known locally as the Chedoke Brow Lands. The Appellant in the Previous OMB Decision is no longer the owner of the Subject Lands because subsequent to that Decision the Appellant in OLT File 21-001169 (Valery (Chedoke Browlands) Developments Inc.) acquired the property. The other parties in the underlying appeal settled and withdrew prior to the Previous OMB Decision.

3In the Previous Decision, the OMB made an Order in the following terms:

“Accordingly, the appeals are allowed, and the Board Orders as follows:

1. The Official Plan for the City of Hamilton is amended as set out in Exhibit 20, as modified, now Attachment “1” to this Order.

2. Zoning By-law 6593 is amended as set out in Exhibit 21, as modified, with the Explanatory notes as set out in Exhibit 22, now part of Attachment “2” to this Order.

3. Zoning By-law 05-200 is amended as set out in Exhibit 23, as modified, with the Explanatory note as set out in Exhibit 22, now part of Attachment “2” to this Order.

4. The draft plan prepared by A.J. Clarke and Associates Ltd. and certified by B.J. Clarke, OLS, dated March 26, 2009, comprising Part of Lot 57, Concession 2, Sanatorium Road and Scenic Drive, Hamilton, is approved subject to the fulfillment of the conditions set out in Attachment “3” to this Order, and subject to the Visual Impact Assessment set out in Attachment “4” to this Order.

Pursuant to subsection 51(56.1) of the Planning Act, the City of Hamilton shall have the authority to clear the conditions of draft plan approval and to administer final approval of the plan of subdivision for the purposes of subsection 51(58) of the Act.

In the event that there are any difficulties implementing any of the conditions of draft plan approval, or if any changes are required to be made to the draft plan, the Board may be spoken to.”

[all emphasis added]

4At the VH, counsel for the City brought forward a proposed change in the draft plan conditions referenced in paragraph [3] above with respect to the Previous OMB Decision. The proposed revised draft plan conditions are set out in Attachment 1 to this Decision.

5Subsequent to the VH, the City’s counsel tendered the Affidavit of Sara Rogers, sworn June 17, 2022. Ms. Rogers is a Member of the Canadian Association of Certified Planning Technicians and has previously been qualified to provide expert evidence on land use planning matters by the Ontario Land Tribunal. Ms. Rogers has been employed as a planning technician with the City for 3.5 years and is currently the Development Coordinator for the City and is responsible for the carriage and processing of Draft Plan of Subdivision Application 25T-200712 ("The Browlands") which is the subject of the appeals before the Tribunal in OLT Case No. 22-003732/PL100691.

6The Tribunal qualified Ms. Rogers to provide written opinion evidence on land use planning matters in this proceeding.

7Ms. Rogers opined as follows:

a) In the Previous OMB Decision, the Board granted draft plan of subdivision approval for the draft plan prepared by A.J. Clarke and Associates Ltd. dated March 26, 2009, subject to the fulfillment of the conditions set out in Attachment "3" to the Previous OMB Decision;

b) Subsequent to the issuance of the Previous OMB Decision, the Subject Lands were acquired by Valery (Chedoke Browlands) Developments Inc.;

c) Since the issuance of the Previous OMB Decision, the City has proposed minor changes to conditions set out in the Previous OMB Decision which have been made with the consent of the Valery (Chedoke Browlands) Developments Inc. (The proposed revised consent conditions are appended as Attachment 1 to this Decision);

d) The substance of the revised consent conditions is minor in nature, primarily related to the implementation of a new multi-use trail in this area and necessary connections;

e) The proposed consent changes to the conditions of draft plan approval are consistent with the Provincial Policy Statement, 2005 (in force at the time of the Previous OMB Decision); conform to the former Hamilton Wentworth Regional Plan and City of Hamilton Official Plan (both in force at the time of the Previous OMB Decision); represent good planning and are in the public interest.

8The Tribunal accepts the land use planning evidence of Ms. Rogers set out in paragraph [7] above and agrees that the proposed changes to the draft plan conditions now contained in Attachment 1 hereto are minor in nature.

9The Tribunal relies on the jurisdiction exercised by the Board in the Previous OMB Decision and notes that the OMB had specifically retained the jurisdiction to deal with any changes in the draft plan conditions, as described above in paragraph [3]. The Tribunal further notes that these proposed changes have been agreed to by the current owner of the Subject Lands, Valery (Chedoke Browlands) Developments Inc.

10The Tribunal wishes to make clear that this to be a very unusual case with specific factual circumstances that are unlikely to reoccur in other OLT proceedings. In any event, this Decision is not intended to constitute a precedent to be relied on by parties to any other former OMB, LPAT or OLT proceeding in seeking to re-open matters previously adjudicated upon by the OMB, LPAT or the OLT.

ORDER

11The Tribunal Orders that the revised draft plan of subdivision conditions set out in Attachment 1 to this Decision are hereby approved.

“William R. Middleton”

william r. middleton

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT 1

PL100691

REVISED CONDITIONS OF DRAFT PLAN APPROVAL

(1) That condition No.’s 9, 10, 18, 19 and 30 as included in ATTACHMENT 3 to the Board’s decision dated June 22, 2012 be deleted and replaced with the following:

9. That prior to registration of any phase of the draft plan, the Owner shall provide a landscape plan prepared by a landscape architect or engineer, or related professional which details the alignment, design and construction of the extension of the Brow Trail, including, but not limited to tree planting, benches, waste bins, lighting, safety barriers and fencing, and considering the stability of the escarpment edge, to the satisfaction of the Manager of Landscape Architectural Services, Public Works Department.

10. That prior to registration of any phase of the draft plan, the Owner agrees to construct the Brow Trail within Block 5 at the Owner’s sole expense (the east-west portion of Sanatorium Road located along the brow of the Niagara Escarpment) including connection to Scenic Drive and with the continuous connection to the existing Brow Trail north of Block 7, in accordance with the City of Hamilton’s Reacreational Trails Master Plan (December 2007) in accordance with the City of Hamilton’s Mountainbrow Multi-Use Pathway Feasibility Study (2018) and the approved landscape plan, to the satisfaction of the Manager of Open Space Development, the Director of Planning and the Director of Development Engineering to the satisfaction of the Manager of Landscape Architectural Services, Director of Planning and Chief Planner, and Senior Director of Growth Management.

11. That prior to registration of the draft plan, the Owner Agrees to construct a 1.5m wide concreate sidewalks 3.5m wide multi-use pathway along the north side of Scenic Drive adjacent to the subject lands to the satisfaction of the Director of Development Engineering Manager of Landscape Architectural Services and Director of Growth Management.

12. That prior to registration of any phase of the draft plan, the Owner agrees to provide an easement over Block 4 for a trail connection to connect Scenic Drive to the Brow Trail, for non-motorized vehicular public access (pedestrian, cyclists, etc.) and City Emergency and maintenance vehicles to the satisfaction of the Director of Development Engineering the Manager of Landscape Architectural Services and Director of Growth Management.

13. That Owner agrees to that prior to any future site plan approvals, the applicant shall be required to submit an Urban Design Report brief including how the proposed development meets the urban design policies contained in Official Plan Amendment 232.